' This is an appeal filed by Hassan Ali against his conviction and sentence. The appellant was convicted by 1st Additional Sessions Judge, Larkana by Judgment dated 25th November, 1978 and sentenced him to suffer R. I. For 5 years and fine of Rs, 2,000 in default of payment of fine to suffer R.
I. For 6 months more.
' The facts as stated by Qutubuddin (hereinafter referred to as complainant) are that on 15th October, 1975 he went to meet his brother Momen at Village Wagan, after taking meals he came to bus stand. At about 12 noon, one Bus came from Kambar, he tried to board when three persons namely Muhammad Nawaz, Hassan Ali and Ghulam Muhammad with hatchets came and Muhammad Nawaz instigated others to kill complainant upon which Ghulam Muhammad gave hatchet blow which missed and he grappled with him when Hassan Ali caused hatchet injury to complainant at right side of neck. On cries came Shaman, Din Muhammad, Mazhar and other who separated them. Momen came at vardat and brought his injured brother at Police Station, Nasirabad where Qutubuddin lodged F. I. R. Which was registered under section 307/34-114, P. P. C., Police after investigation challaned Hassan Ali and Ghulam Muhammad.
2. At the trial prosecution examined 7 witnesses P. W. Dr. Ubedullah, P. W. 2 Qutabuddin, P. W. 3 Mazher Ali, P. W. 4, Din Muhammad, P. W. 5 Dhani Bux, P. W. 6 Momen, P. W. 7 Ghous Bux.
' Accused pleaded not guilty and in his statement under section 342, Cr. P. C. Exh. 19 has stated that he is innocent and has been implicated due to enmity.
' Dr. Ubedullah Exh. 4 has stated that on 17th October, 1975 he was Medical Officer at Nasirabad and on the same date he examined injured Qutubuddin and found following injuries on his person :-
(1) Incised wound 7" x II" on the right side of neck.
(2) Lower methird (1/3) of external ear pinna is completely cut off.
(3) Abrasion on the right arm.
' Injuries Nos. 1 and 2 were caused with sharp weapon whereas injury 3 with a hard and blunt weapon. According to him injury 2 was grievous. On the same day he also examined accused Hassan Ali and found one injury as follows :-
(1) A lacerated wound 1" x 1/3' in bone deep on the right side of skull.
' It was simple in nature. In his cross examination he has stated that the injured Qutubuddin might have gone unconscious due to injuries.
3. P. W.
2. Qutubuddin injured, has stated in his deposition which is Exh. 7 that his brother Momen resides in village Wagan and owns a shop. On the day of incident he came to meet his brother and after taking breakfast he started going back to his village, when he reached at the bus stop and was just waiting for the bus when he sustained hatchet injury on his neck which was caused by Hassan Ali.
He has further stated that co-accused Ghulam Muhammad had also hatchet in his hand, but he did not cause any injury. He fell on the ground became unconscious. He was taken to Police Station by Shamsuddin and Mazhar. His brother Momen also reached at the bus-stop he gave him names of the accused as Ghulam Muhammad and Hassan Ali as then he lodged report which is Exh.
8. In his cross-examination he has stated that there were 40/50 persons in the bus at the time of incident. He had given the names of accused Hassan Ali and Ghulam Muhammad, under suspicion and he did not see the accused Hassan Ali causing the injury but saw accused Hassan Ali and Ghulam Muhammad standing at the bus-stop.
4. Mazhar Ali, eye-witness Exh. 9 has stated that he found Haji Qutubuddin lying injured on the ground and did not see anybody causing injury to him and P. Ws. Shamman and Din Muhammad were also present at the place of occurrence at the time of incident. He has further stated that P. W.
Shamman died after the incident. He has deposed on oath that when he reached at the place of occurrence none of the persons present gave the names of the accused. Din Muhammad P. W. 4 has stated that he had not seen anybody causing injuries to Qutubuddin, but Qutubuddin informed him that Hassan All had caused injuries to him. Dhani Bux at Exh. 11 is mashir of injuries of complainant and recovery of blood-stained hatchet from appellant. He has stated that accused had hatchet in his hands at the place of occurrence and he produced it at about 5/6 p. m.
Whereas mashirnama regarding production of hatchet was prepared at 1-30 p. m. Which is Exh. 14 and A. S. I. Ghous Bux Exh. 16 has also stated that accused Hassan Ali presented himself at the Police Station and produced the hatchet which according to mashirnama is at 1-30 p. m. P. W.
Momen Exh. 15 is brother of injured/complainant. He has deposed that Qutubuddin had come to him in village Waggan but not met him. He was informed by his son Dilshad at noon time that Qutubuddin had been injured at the bus stop. He went to the Police Station and found Qutubuddin unconscious. He has further stated that Qutubuddin told him that he had not identified the assailants as he received the injuries from the back side. He has .Admitted the dispute with the appellant. P. W. 7 Ghous Bux stated that he was A. S. I. At the time of incident and recorded the F. I. R.
Lodged by Qutubuddin. He arrested accused Hassan All and secured hatchet from him. He also recorded the statement of prosecution witnesses, Mazhar Ali, Shamman, Din Muhammad and others and finally, submitted papers to S. H. O. Who challaned the case under section 307, P. P. C.
' I have heard Mr. Abdul Fattah Memon, the learned counsel for the appellant and Mr. Agha Ghulam Ali for the State. Mr. Abdul Fattah contended that the witnesses including injured Qutubuddin have not supported the case of the prosecution and that co-accused Ghulam Muhammad has been acquitted by the learned Judge and this is a case of no evidence. Mr. Agha Ghulam Ali the learned counsel for the State has not supported the judgment of conviction and sentence.
All the eye-witnesses including complainant who is injured have not implicated the appellant. The evidence on the point of recovery of hatchet from accused/appellant does not inspire confidence.
Ghulam Muhammad co-accused was acquitted by trial Court and another accused Muhammad Nawaz was not challaned. From the evidence of complainan Qutubuddin and his brother Momen Exh. 15 it appears that parties hay patched up.
' After having carefully examined the entire evidence and reasons stated above I am of the opinion that prosecution has failed to prove the case beyond reasonable doubt. I, therefore, follow the appeal. The appellant is on bail. His bail bond stands cancelled.